Mt. Bali Kuar Vs. Khamani Ram - Court Judgment

LegalCrystal Citation

legalcrystal.com/465930

Subject

Limitation;Civil

Court

Allahabad

Decided On

Jun-22-1928

Reported in

AIR1928All762

Appellant

Mt. Bali Kuar

Respondent

Khamani Ram

Excerpt: - - 16 of that schedule gives the period of limitation of a suit like the present under section 164 of that act as three years and states that time begins to run when the share of the profits become payable that date is as follows: accordingly i consider that the objection of limitation is well-founded. 4. the parties will obtain their costs in the lower appellate court in proportion to their success and failure......court granted the plaintiff & share based on the gross arrears of rental duo in fasli 1329 for the years fasli 1326-1327 and 1328 in addition to the decree on gross rental for fasli 1329. it was argued in the first place that because the plaintiff had previously obtained a decree for profits on actual collections for the years fasli 1326 to 1328 therefore it was not open to the lower appellate court to find that the defendant-lambardar was negligent in regard to the arrears for those years. but in the previous suit the question of negligence was for negligence during the period fasli 1326-1328. the finding of the lower appellate court is in regard to negligence in fasli 1329. these are separate matters and i am bound by the finding of fact of the lower appellate court that the lambardar.....

Judgment:

Bennet, J.

1. This is a second appeal by the defendant lambardar. The plaintiff cosharer sued for profits for the year Fasli 1329 and obtained a decree on gross rental from the Court of first instance. The plaintiff also sued for a share of arrears of rental of the previous years. The lower appellate Court granted the plaintiff & share based on the gross arrears of rental duo in Fasli 1329 for the years Fasli 1326-1327 and 1328 in addition to the decree on gross rental for Fasli 1329. It was argued in the first place that because the plaintiff had previously obtained a decree for profits on actual collections for the years Fasli 1326 to 1328 therefore it was not open to the lower appellate Court to find that the defendant-lambardar was negligent in regard to the arrears for those years. But in the previous suit the question of negligence was for negligence during the period Fasli 1326-1328. The finding of the lower appellate Court is in regard to negligence in Fasli 1329. These are separate matters and I am bound by the finding of fact of the lower appellate Court that the lambardar was negligent in Fasli 1329 in regard to these arrears. The second point urged by the learned vakil for the appellant is one of limitation in regard to these arrears. He relies on Schedule 4, Act 2 of 1901. No. 16 of that schedule gives the period of limitation of a suit like the present under Section 164 of that Act as three years and states that time begins to run when the share of the profits become payable That date is as follows:

Fasli 1326 profits became payable on 1st August 1919.

Fasli 1327 profits became payable on 1st August 1920.

Fasli 1328 profits became payable on 1st August 1921.

2. The suit was filed on 24 October 1924. This is more than three years after the three dates, on which profits became payable for these years Fasli 1326-1328. The argument, therefore, is that the suit is time barred in regard to these arrears. The learned vakil for the respondents alludes to a Full Bench ruling of this Court in Sheo Ghulam v. Salig Ram A.I.R. 1924 All 481. In that ruling the questions decided are given on p. 807. The question-of limitation was

whether the period of limitation for a suit under Section 161 for a share of profits in respect of arrears collected subsequently begins to run (a) from 1st August immediately following the year to which these arrears relate, or (b) from 1st August following the year in which the arrears are realized.

3. It will be seen that the question in this Full Bench ruling was in regard to the collection of arrears and it was held that for such collection the period of limitation begins to run from 1st August following the year in which the arrears are realized. The question in the present case is the converse, as it concerns arrears which are not collected. No light is thrown on the present question by the Full Bench ruling. The mere fact that the arrears of previous years formed part of the demand for the year in suit does not in my opinion entitle me to hold that the period of limitation should be the same. In fact if this argument were applied, there would never be any period of limitation, because if the period was the same for the arrears as the year in suit, then the year in suit in turn has a period of three years which would be again extended and an infinite series would arise. It appears to me that the basis of the Full Bench ruling was that a share of profits in respect of the arrears was not payable until the arrears were collected, and, therefore, the period should be three years from the date of collections. That argument cannot be applied to arrears which are not collected. Accordingly I consider that the objection of limitation is well-founded. The decree of the lower appellate Court was for Rs. 613 on gross rental arrears. The lower appellate Court found that the share of the plaintiff of arrears actually collected was Rs. 120. The appeal before me is for the difference i.e., Rs. 493. I allow the appeal in this Court with costs.

4. The parties will obtain their costs in the lower appellate Court in proportion to their success and failure.